Status Update: Social Media in the Changing Landscape of Litigation in Canada

Information disseminated through social media platforms such as Facebook and LinkedIn is of growing utility in litigation matters. Evidence obtained from social media accounts by way of discovery preservation and production orders has significantly strengthened the positions of litigating parties. This should come as no surprise as individuals routinely "post" messages, thoughts, pictures and experiences on these platforms, leaving a wake of evidence in the process.

There has been marked development in this area of law in Canadian jurisprudence. To date, Courts and Tribunals have, among other things, ordered the preservation and production of entire social media accounts, dismissed wrongful dismissal claims based in part on the disparaging nature of comments posted online, and considered social media evidence against claims of the loss of enjoyment of life and the inability to work. However, the Courts are cognizant of the private nature of this information and have been careful to balance the probative value of this evidence against the privacy interest of the social media user. Generally, the Courts have resolved this tension by making a determination of how “private” the social media account is through the application of a number of factual indicia. As this area of law develops, Canadian Courts and Tribunals will no doubt find increasing utility in the evidentiary value such information provides.

When Social Media is Producible

Canadian jurisprudence is clear that social media accounts are considered documents that must be produced if they contain relevant and material information. This principle manifests itself most acutely in personal injury claims where the “social” aspect of social media speaks directly to the claimant’s loss of enjoyment of life. For example, social media such as pictures of claimants engaged in recreational activities are often admitted as evidence relevant to demonstrating the claimant’s enjoyment of life or ability to work.

However, the probative value of social media is not limited to personal injury claims. In one instance, disparaging comments made against an employer by an employee on a blog were sufficient to dismiss the employee’s claim for wrongful dismissal. In another, a former employer was able to obtain an Anton Piller order to seize, among other things, the LinkedIn account of an employee that they claimed had breached confidentially restrictive covenants in an employment contract.

Many Courts have inferred the likely existence of relevant documents on a limited-access account from the nature of the social media service. Some Courts have denied such an inference, finding instead that private information on limited-access accounts is producible only when publicly available information infers the existence of relevant material held privately. Interestingly, some Courts have cautioned that such accounts are likely to contain a degree of “puffery” that must be taken into consideration.

In determining the privacy interest of the social media user, many Courts point to factual indicia of privacy surrounding the account itself. Many social media accounts are of limited access, containing internal controls, set at the discretion of the account holder, that limit the viewable content and the discoverability of the account. Courts have also considered the number of individuals able to view the social media account. In one example, the claimant’s Facebook account was viewable by 200 Facebook “friends”, only 5 of which were described as “close friends”. The Court concluded that this wide audience mitigated against privacy and the Facebook account had to be produced.

The following table contains a list, with noteworthy considerations, of select reported Canadian cases requiring the production of social media accounts:

Decision

Type of Case

Noteworthy Considerations

Court

Social Media

Alberta v   Alberta Union of Provincial Employees,   [2008] AWLD 2982Alberta Arbitration   Board Wrongful DismissalBlog In this arbitration, an employee had posted negative comments about her colleagues on a personal blog. In hearing a claim for wrongful dismissal, the Arbitration Board took into consideration the disparaging nature of the comments and the employee’s lack of remorse. The Board also noted how the employee took no steps to block public access to her comments. The majority of the Board upheld the   termination, noting the destructive effect of the comments on the employee – employer relationship. This case was overturned in the Alberta Court of Queen’s Bench based on a breach of a representation clause in the collective agreement.
Leduc v Roman, [2009] OJ No 681Ontario Superior Court   of Justice Personal InjuryFacebook The Court noted that postings on Facebook pages are considered documents within the meaning of the Ontario Rules of Civil Procedure. A party must produce any of his Facebook postings relevant to any matter in issue in an action.Where a party maintains a private Facebook profile, it is reasonable to infer from the presence of content on the party`s public profile that similar content likely exists on the private profile.
Carter v   Connors, 2009 NBQB 317New Brunswick Court of   Queen`s Bench Personal InjuryFacebook In this case, the plaintiff had been unable to return to work as an administrative clerk for more than short periods after a motor vehicle accident. The defendants made an application to have the plaintiff’s Internet Service Provider disclose the history of her internet use, including a discrete record for Facebook.The Court noted that the information to be garnered had a semblance of relevance as it  would provide a window into what physical capacity the plaintiff had as to keyboard, accessing the Internet and ability to communicate with family friends and associates on Facebook. This was directly relevant to what capacity the plaintiff may have to work.
DeWaard v   Capture the Flag Indoor Ltd.,   2010 ABQB 571 Alberta Court of   Queen’s Bench Personal InjuryFacebook In this case, the defendants alleged that the Facebook account of the plaintiff, who had obtained an injury while playing laser tag at the defendant’s facilities, evidenced a substantial recovery as it recorded, through pictures and text, a normal and active lifestyle. This was inconsistent with statements made by the plaintiff to experts.In dismissing this inconsistency, the Court accepted that Facebook profiles may contain an overly positive perspective regarding one’s abilities and interests or a certain amount of “puffery”. The inconsistencies were not sufficient to impeach the plaintiff’s credibility.
1483860   Ontario Inc. v Beaudoin,   2010 ONSC 6294Ontario Superior Court   of Justice Breach of   confidentiality restrictive covenantsLinkedIn In this case the plaintiff, on the grounds that the defendant was breaching a confidentiality restrictive covenant, obtained an Anton Piller order to seize “other materials in any way relating to the Confidential Information in any form whatsoever including electronic format such as Microsoft Word, Microsoft Outlook, hotmail, yahoo mail and LinkedIn.”
Frangione v   Vandongen, 2010 ONSC 2823Ontario Superior Court   of Justice Personal InjuryFacebook In this case, the plaintiff produced only relevant information from his Facebook page that was available to the public, and contested the production of private information. The plaintiff had his Facebook privacy settings set to restrict its content to 200 “friends”, admitting only 5 of which were “close friends”.The Court noted that it may infer from the nature of the Facebook service the likely existence of relevant documents on a limited-access Facebook profile. The existence of relevant information available publicly allowed the Court to infer the probable existence of information held privately.
Ottenhof v   Kingston Police Services Board,   2011 ONSC 1430Ontario Superior Court   of Justice Personal InjuryFacebook In this case, the defendants sought to compel the production of all content on the private portion of the plaintiff’s Facebook account.Access to the party's Facebook account through the party's password is overly intrusive unless the party is claiming as part of his or her damages claim a level of disability that inhibits his or her computer time. In those circumstances, a forensic examination of the Facebook account may be necessary.
Dube v Young, 2012 ABPC 40 Alberta Provincial   Court Division of Marital   PropertyFacebook In this case, the plaintiff brought an action against the defendant for damages in respect of an automobile purchased and retained by the defendant. The defendant relied on a Facebook post by the plaintiff to contend that the vehicle had been provided as a gift.The Court noted that Facebook postings may be used to establish intent, though they should be applied with caution as they often provide an overly positive perspective. The Court concluded that the Facebook posting was “boastful and self-congratulatory, if not downright tacky and nothing more than an effort on the part of the Plaintiff to make himself appear generous and kindhearted.” As a result, the Facebook post was insufficient to evidence a gift.

 

When Social Media is not Producible

Canadian Courts have clarified instances when social media accounts are not producible. It is clear that where the social media accounts are not relevant and material to the pleadings, they need not be produced. Production is also not required in instances where the privacy interest of the account holder outweighs the probative value of the evidence. In one example, a claimant’s Facebook account was viewable by only 67 Facebook “friends” with strict privacy settings. The Court implied that this mitigated in favour of privacy, and the account was not producible. In a second example, the Court noted that permitting access to 139 “friends” operated to exclude approximately 1 billion Facebook users, showing a privacy interest that prevented production.

The following table contains a list, with noteworthy considerations, of select reported Canadian cases not requiring the production of social media accounts:

Decision

Type of Case

Noteworthy Considerations

Court and Year

Social Media

Kent v   Laverdiere, [2009] OJ No 1522Ontario Superior Court   of Justice Personal InjuryFacebook Myspace In this case, the Court refused to require the production of a supplementary affidavit of documents, making two primary observations. First, the pleadings failed to show the social media pages could be relevant to the matters in issue. Second, while for one plaintiff there was the semblance of relevance, the Court noted that the kind of information sought through production of Facebook pages would have been equally available through surveillance.
Schuster v   Royal & Sun Alliance Insurance of Canada, [2009] OJ No 4518Ontario Superior Court   of Justice Personal InjuryFacebook In this case, the plaintiff had her Facebook privacy settings set to restrict its content to 67 “friends”. The Court found that purpose of the page was not created for sharing with the public.What is determinative when drawing an inference that the private Facebook page likely contains relevant material is whether there is relevant information in their public profile. The Court cautioned that the mere nature of Facebook as a social networking platform is not necessarily evidence that it contains information that is relevant.The Court further noted that an order requiring a party to provide a username and password to provide access to their Facebook page is beyond the scope of the Ontario Rules of Civil Procedure.
Stewart v   Kempster, 2012 ONSC 7236 Ontario Superior Court   of Justice Personal InjuryFacebook In this case, the Court noted that Facebook has about 1 billion users. Out of those, the plaintiff permitted only 139 people to view her private content, excluding approximately 1 billion users from viewing the private content. The Court found that this supported a real privacy interest in the content of the Facebook account. As a result, the Court concluded that there were no relevant documents on the plaintiff’s Facebook account.

 

Conclusion

When hearing applications for the production and preservation of social media accounts, the Court is being asked to engage in a delicate balance between the privacy of the individual and the probative value of the evidence. Two factors that clearly erode an account holder’s privacy interest include relaxed privacy settings and the existence of relevant information available on public portions of the account that allows the inference of the probable existence of information held privately.

As shown above, a third factor, being a large number of “friends” able to view the social media page, has proven unclear. However, it is likely that Courts are more concerned with the nature of the account holder’s relationship with the audience, as opposed to its size. When making an application for the production or preservation of social media accounts, it may be more appropriate to frame the argument as being about the nature of the “friendship” as opposed to the quantum. The more “public” the audience is, the less likely there exists a legitimate privacy interest.

* Jeremy Busch-Howell is an Articling Student at McCarthy Tétrault.

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